Chingu @ Sohanlal & Ors. vs State of Madhya Pradesh

This appeal under Section 374(2) of Cr.P.C. have been preferred by the appellants/accused persons namely Chingu @ Sohanlal, Bhaiyadeen,

Rajesh, Manoj @ Lala, Bharosa, and Valesha @ Bhawanideen against the judgment and conviction dated 10.10.2008, passed by Special Judge

(S.C./S.T.) Chhatarpur (M.P) in S.T. No.172/2006, whereby the appellants/accused persons have been convicted for commission of offences

punishable under Section 302/149 of IPC (three counts) and sentenced to undergo rigorous imprisonment for life and a fine of Rs.1000/- each,

Section 325/ 149 of IPC and sentenced to undergo rigorous imprisonment for two years and a fine of Rs.500/-, Section 148 of IPC and

sentenced to undergo rigorous imprisonment for one year, with default stipulations.

The prosecution story in nutshell is that deceased Dileep and Babbu were real brothers. Deceased Rambabu was the son of Babbu. The

deceased and appellants are resident of village Khaira Kasar. There was previous enmity between appellants and deceased persons on account of

property dispute. On 15.03.2006 at about 5 O''clock in the evening, deceased Babbu, Dileep and Rambabu and Bhola were sitting in front of their

house. The villagers were celebrating Holi festival. Appellant Manoj came there and sat with Babbu and Dileep. After sometime, Guddi Bai, the

sister of Manoj, came there and asked Manoj why he is sitting with the enemies. Manoj told her that he had come to apply Gulal (Abir) to Babbu

and Dileep on occasion of Holi. Thereafter, Guddi returned home and again came back with appellant Bharosa, Rajesh, Balesha, Pappu and

Shivmangal. An oral altercation took place between Bhola and appellants then appellants returned home with Manoj. At around 7 O''clock in the

evening, Bhola, Rambabu, Babbu and Dileep were sitting in front of their house, meanwhile, appellants Chingu, Bahiyadeen, Rajesh, Manoj,

Bharosa, Valesha, Ballu and Shivmangal armed with weapons like axe, ballam, lathi and gun arrived there. Chingu fired a gun shot in the air and

thereafter, appellants and other accused persons started beating Babbu, Dileep, Rambabu and Bhola. Seeing the incident, Guddi Bai, Kallu Bai,

Rani Bai and Shanti Bai tried to intervene and save the deceased persons then Guddi Bai and Shanti Bai were beaten by appellants. Babbu,

Dileep, and Rambabu sustained fatal injuries and they died on the spot. After beating them, the appellants ran away. An intimation of the incident

was received at Police Station Jujhar Nagar, Roop Singh Chouhan Sub Inspector and SHO, visited village Khaira Kasar and on report of Bhola

recorded Dehati Nalsi Ex.P-14 and Marg Intimation Exs.P-23, P-24 and P-25. The inquest was initiated and Panchnama of dead body of Babbu,

Dileep and Rambabu were prepared and dead bodies were sent for postmortem to Community Health Center, Laundi. The police registered the

FIR and during investigation, spot map Ex.P-40 was prepared. Injured Bhola was sent for medical examination to Community Health Centre,

Laundi where Executive Magistrate recorded his dying declaration. The appellants were arrested and a ballam was seized at the instance of Chingu

@ Sohanlal, a pharsa was seized at the instance of Bhaiyadeen, lathies were seized at the instance of Rajesh and Manoj, a pharsa was seized at

the instance of Babbu Ahirwar, a axe was seized at the instance of Bharosa, a ballam was seized at the instance of Balesha. On 04.04.2006, the

Investigating Officer seized a country made pistol of 315 bore with two live cartridges from appellant Balesha. The seized articles were sent for

examination to FSL. The statements of witnesses were recorded and after completion of investigation, the charge-sheet has been filed before the

Court. The co-accused Shivmangal remained absconded at the time of filing of charge-sheet.

The trial Court framed the charges of offence under Sections 148, 302 in alternative 302/149 (three counts), Section 307 in alternative

307/149, 323 in alternative 323/149 IPC against appellants. Appellant Balesha was additionally charged with offence under Section 25(1-b)(a)

read with Section 27 of Arms Act. The appellants abjured guilt and pleaded innocence.

The prosecution has examined 17 witnesses whereas the appellants had adduced two witnesses in their defence.

The trial Court on appreciation of evidence relying upon the testimony of eyewitnesses Bhola (PW-3), Guddo Bai (PW-5), Shanti Bai (PW-6)

and Sangeeta (PW-7) arrived at the conclusion that the appellants being member of unlawful assembly, in furtherance of common object of

assembly committed murder of deceased Rambabu, Dileep and Babbu and also caused grievous injuries to Bhola. The trial Court held the

appellants guilty for commission of offence punishable under Sections 302/149 (three counts) and 325/149 and 148 of IPC and sentenced them as

mentioned hereinabove.

It is argued by learned counsel for the appellants that there was no evidence to prove enmity between the appellants and deceased persons. The

case of prosecution is not supported by independent witnesses. The witness Rani Bai, Guddo Bai, Shanti Bai and Sangeeta had admitted that they

arrived on the spot after the incident. Therefore, they cannot be treated as eyewitnesses and their testimonies become doubtful. The statements of

eyewitnesses were recorded after a long delay which is not explained by prosecution. There are material discrepancies found in the version of

prosecution witnesses. The trial ?ourt on erroneous appreciation of evidence has wrongly held the appellants guilty for commission of murder of

deceased persons.

Heard arguments and perused the record.

It is not disputed that the deceased Babbu, Dileep and Rambabu had sustained fatal injuries at the time of incident and they died on the spot.

Investigating Officer Roop Singh Chouhan (PW-13) visited the sence of occurrence, and recorded Dehati Nalsi Ex.P-14 on the report of

complainant Bhola who had also received injuries. From the evidence of Roop Singh Chouhan (PW-13) it is found that he had initiated the inquest

by recording the Marg Intimation Ex.P-23, P-24 and P-25 in respect of death of Rambabu, Dileep and Babbu respectively and after preparing

Panchnama of dead body, sent the bodies for postmortem to Community Health Center Laundi.

Dr. J.P. Naik (PW-8) deposed that on 16.03.2006 at Community Health Center Laundi, he had conducted the postmortem of dead bodies of

deceased Rambabu, Dileep and Babbu Ahirwar. On examination of dead body of Rambabu, he found following injuries ;-

(i) Incised wound 6 x 3.5 cm, over right parital region of scalp cutting the brain and brain material came out from the wound, clotted blood present

at the wound side. It is opined by the Doctor that the injury was antemortem and cause of death is Coma due to damage of vital organ of brain.

The statement of doctor is duly corroborated by postmortem report Ex.P-15 given by him.

Dr. J.P. Naik (PW-8) deposed that on postmortem of Dileep, he found following injuries :-

(i) Stab wound 1.5 x 1.5 cm circular in shape over left side of chest.

(ii) Stab wound 1.5 x 1.5 cm circular in shape on left side of chest near injury No.1.

(iii) Exit wound size .5 cm circular in shape over left side scapula.

(iv) Exit wound .5 cm circular in shape over left side of back.

(v) Lacerated wound 2.5 x .5 x .5 cm on lower jaw.

(vi) Lacerated wound 2.5 x .5 x .5 cm over right eye.

(vii) Lacerated wound 1.5 x .5 x .5 cm on right side of nose.

(viii) Incised wound 3.5 x .5 x.5 cm on vertex region of scalp.

On internal examination, the lungs, liver and heart were found ruptured. It is opined by the doctor that death of the deceased was caused due to

injuries caused on lungs, liver and heart. The injuries are ante-mortem. The statement of doctor is duly corroborated by postmortem report Ex.P-

16.

Dr. J.P. Naik further deposed that on postmortem of dead body of Babbu Ahirwar, he found following injuries :-

(i) Stab wound 1.5 x 1.5 cm on left side of abdomen at epigestric region.

(ii) Stab wound 1.5 x 1.5 cm over right side of chest.

(iii) Incised wound 3.5 x .5 cm bone deep on left hand. The fracture of bone was visible.

(iv) Multiple incised wound over left leg cutting muscles and bones. The fracture of bone was visible.

On internal examination liver and lungs were found ruptured, the injuries are ante-mortem in nature and death was caused due to injuries sustained

by deceased. The evidence of doctor is duly corroborated by the postmortem report Ex.P-17.

Dr. J.P. Naik (PW-8) further deposed that on 16.03.2006, he had examined Bhola Ahirwar and found following injuries :-

(i) Lacerated wound on vertex region of scalp size 3 x .5 x.25 cm.

(ii) A irregular swelling on left hand.

(iii) A irregular swelling on left knee.

(iv) A irregular swelling on left clevical bone.

(v) A irregular swelling on right Xygomatic bone.

It is opined by the doctor that the injuries are caused hard and blunt object. He has advised for X-ray of the patient. The statement of doctor is

corroborated by MLC report Ex.P-27.

The injured Bhola was further sent for X-ray to District Hospital Chhatarpur. Dr. M.P.N. Khare (PW-12) radiologist deposed that on

17.03.2006 at District Hospital Chhatarpur on X-ray of injured Bhola, a fracture of left ulna bone was found. This fact is corroborated by X-ray

report Ex.P-28 and X-ray place Ex.P-28C.

Thus, from the postmortem report and the MLC report of Bhola, it is duly established that deceased Dileep, Rambabu and Babbu had

received fatal injuries at the time of incident and they died of the injuries sustained by them. Complainant Bhola had also received grievous injuries

at the time of incident. The findings of trial Court is accepted in this regard.

Now the question arises whether appellants have formed an unlawful assembly with common object to kill the deceased Dileep, Rambabu and

Babbu and thereafter being member of the assembly, they killed the deceased persons and caused grievous injuries to Bhola.

The prosecution has examined Ramnarayan (PW-1), Bhola (PW-3), Rani Bai (PW-4), Guddi Bai (PW-5), Shanti (PW-6) and Sangeeta

(PW-7) as eyewitnesses to the incident. Ramnarayan (PW-1) has not supported the prosecution case and has been declared hostile. He had

stated that at the time of incident, he was not present on the spot.

Bhola (PW-3) deposed that on the date of incident, there was Holi festival. At around 5:00 O''clock in the evening he was sitting with Dileep,

Babbu and Rambabu in front of his house. Meanwhile, appellant Manoj came there to apply Gulal and sat with them. Later on, Guddi Bai, the

sister of Manoj, came there and told Manoj not sit with enemies. Guddi Bai returned home and again came back with appellants Balesha, Bablu,

Rajesh, Shivmangal. They took Manoj with them and returned home. Thereafter, at around 7:00 O''clock in the evening he was sitting with

Rambabu, Babbu, Dileep in front of his house. Meanwhile, appellants Chingu, Bhaiyadeen, Rajesh, Manoj, Bharosa, Balesha, Shivmangal, Bablu

and Halku Ahirwar arrived there. Chingu was armed with ballam and Katta. Balesh was armed with axe, Halku armed with Pharsa, Rajesh armed

with axe, Bhaiyadeen armed with ballam, Bablu armed with Pharsa and Shivmangal and Bharosa were armed with lathies. Chingu fired a gun shot

in the air and exhorted to catch hold of Manoj. Thereafter, all appellants and accused persons started beating Bhola, Babbu, Rambabu and Dileep

by their respective weapons. Chingu assaulted Babbu on his chest by ballam. Halku inflicted a blow of pharsa on person of Babbu. Thereafter,

Dileep and Rambabu were beaten. Bhola tried to intervene and save them, he was also beaten by the appellants. Seeing the incident Kallu Bai,

Guddi Bai, Rani Bai and Shanti Bai came to intervene and save the deceased persons. They were also beaten by the appellants. After killing

Rambabu, Dileep and Babbu, appellants ran away. It is further deposed by Bhola that when he was going to lodge the report, he was obstructed

by the appellants. They surrounded his house and threatened him to kill if he would go to lodge the report. Next day morning, police came to his

house and he lodged Dehati Nalsi Ex.P-14. He was sent for medical examination. In cross-examination, we do not find any material omission or

contradiction in his statement and his version is fully corroborated by the Dehati Nalsi Ex.P-14.

The statement of Bhola is also corroborated by Guddi Bai (PW-5) and Shanti Bai (PW-6). Guddi Bai in her statement deposed that on the

date of incident at around 7:00 O''Clock in the evening she and her Jethani Shanti Bai (sister-in-law) were doing domestic work in the house, the

deceased Rambabu, Dileep, Babbu and Bhola were sitting outside in front of the house. Meanwhile a quarrel took place and hearing the noise of

the quarrel she came out and saw appellants Chingu armed with Ballam, Bhaiyadeen armed with Barchi, Balesha armed with Ballam, Bharosa

armed with axe, Manoj and Shivmangal armed with lathies, Bablu armed with Pharsa and Halku armed with Pharsa present in front of the house.

All the appellants and accused persons started beating Dileep, Babbu and Rambabu by their respective weapons. Appellant Chingu fired a gun

shot during the incident. Guddi Bai and Shanti Bai tried to intervene, then Chingu assaulted a blow of lathi on her person. After beating, Rambabu,

Dileep, Babbu and Bhola, appellants and other accused persons left the spot. The appellants had prevented them to go to police station to lodge

the report during night. Next day morning police came on the spot.

Shanti Bai (PW-6) also deposed in the similar way as Guddi Bai by stating that hearing the noise of quarrel, she came out of the house and

saw the appellants and other accused persons assaulting Babbu, Dileep, Rambabu and Bhola, who were sitting in front of the house. Appellant

Chingu fired a gun shot in the air. She tried to intervene but one of the appellants assaulted her by lathi on her head and she fell unconscious. After

killing Rambabu, Dileep and Babbu, appellants ran away.

Sangeeta (PW-7) is also an eyewitness. She is daughter of Babbu. Although, she is a child witness aged about 12 years but she had

categorically deposed that at the time of incident, her father Babbu, uncle Dileep, Rambabu and Bhola were sitting in front of the house,

meanwhile, appellants arrived there. Appellant Halku armed with Pharsa, Chingu was carrying Ballam, Bharosa armed with axe, Balesha armed

with Ballam, Bhaiya Deen armed with Ballam, Bablu armed with Pharsa and Manoj and Rajesh armed with lathi. The appellants and accused

persons started beating Babbu, Dileep, Rambabu by their respective weapons. Seeing the incident, Shanti Bai and Guddi Bai tried to intervene but

they were also assaulted by the appellants.

Thus, from the statements of witnesses Bhola Ahirwar (PW-3), Guddi Bai (PW-5) Shanti Bai (PW-6) and Sangeeta it appears that the

appellants came in front of the house of deceased Dileep and Babbu with other accused persons. They were all armed with deadly weapons like

axe, ballam, lathi and gun and started beating Rambabu, Dileep, Babbu and complainant Bhola. As far as testimony of Bhola (PW-3) is concerned

he is an injured witness. His presence at the scene of occurrence can not be doubted. Law is well settled that an injured person is the best witness

to say about the cause of his injuries unless the injuries are shown to be self inflicted. His presence at the spot cannot be disbelieved and he would

not easily substitute a wrong person in place of his real assailant. The evidence of an injured cannot be rejected on the ground that he is an

interested witness . Even if the prosecution proves that there was dispute between the parties but that cannot also be a ground to discard the

evidence of the injured, if it is otherwise found to be reliable, cogent and trustworthy inasmuch as enmity is a double edged weapon. Enmity can be

a ground to falsely institute a case against a person but at the same time it can also be a motive for commission of the crime. Therefore, on the mere

plea of false implication taken by the defence without any documentary and oral evidence to that effect, the prosecution case cannot be

disbelieved.

The other prosecution witnesses Shanti Bai (PW-6) and Sangeeta (PW-7) are wife and daughter of deceased Babbu. Guddi Bai (PW-5) is

sister-in-law of Shanti Bai. Therefore, their presence in the house of deceased Babbu is natural. They came out of the house hearing the noise of

quarrel. Since incident took place in front of the house, therefore, they have witnessed the incident. When a large number of accused persons

assaulting the deceased persons by deadly weapons, it cannot be expected for women of the house to intervene and save the deceased persons.

Therefore, the testimonies of PW-5, PW-6 and PW-7 cannot be discarded only on the ground of their relationship with deceased persons.

It has been contended by the counsel for the appellants that there is material discrepancies in the statements of the witnesses regarding the part

played by each one of the assailants. The witnesses are not able to describe the individual act of each appellant therefore they can not be relied

upon. This argument can not be accepted. In case law Vyas Ram @Vyas Kahar v. State of Bihar AIR 2014 SC (Suppl) 143 Hon''ble Supreme

Court observed as under:-

That where a crowd of assailants, who were the members of an unlawful assembly proceed to commit a crime, in pursuance of the common

object of that assembly, it is often not possible for the witnesses to describe the actual part played by each one of them, and when a large crowd of

persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In that

case several weapons were carried by different members of the unlawful assembly, and an accused who was the member of such an assembly and

was carrying firearms was not permitted to take any advantage of the fact that he did not use those firearms, though other members of the

assembly used their respective firearms.

In the present case, the prosecution witnesses Bhola (PW-3), Guddi Bai (PW-5), Shanti (PW-6) and Sangeeta (PW-7) categorically stated

about the presence of present appellants among the other assailants who assaulted the deceased persons. There is no delay in lodging of the

report. The three persons of the family have been killed in the incident. Naturally the other members of family would be in the state of shock, grief

and fear. It also appears from the evidence of Bhola and Rani Bai that the appellants had prevented them to go to police station for making report.

The Dehati Nalsi Ex.P-14 was recorded in the morning when police arrived in the village. This report corroborates the testimony of complainant

Bhola. It is settled law that where the evidence of eye witness is cogent and acceptable, it cannot be rejected for little discrepancies or on cryptic

observation of general nature that it appears to be suspicious or in absence of strong reason and also where it is corroborated by other

circumstances of the case. Where a large number of persons involved in commission of crime it is difficult for witnesses to describe the role played

by each accused. It is argued by learned counsel for the appellants that in the trial against the absconded accused Shivmangal Ahirvar, the

complainant Bhola Ahirvar in his statement deposed that at the time of incident there was dark , he could not identify the assailants who had

assaulted and killed Babbu, Dileep and Rambabu. This statements shows that Bhola and other witnesses could not identify the assailants and they

are falsely implecating the present appellants. This argument cannot be accepted. The evidence recorded in a separate trial conducted against

absconded accused Shivmangal cannot be used to contradict the testimonies of a witness in the present trial. Therefore, we cannot doubt the

testimony of Bhola Ahirwar (PW-3) in present case on this ground. Thus, it is proved from the testimonies of witnesses Bhola, Guddi Bai, Shanti

and Sangeeta that the appellants were the members of unlawful assembly. The common object of the assembly is to assault and kill the deceased

persons. The three persons Dileep, Rambabu and Babbu have been killed in the incident.

Hon''ble Apex Court in case law Lalji Vs. State of U.P. (1989) (1) SCC 437 in para 9 and 10 observed as under :-

..... Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial.

He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the

unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be

taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons

forming an unlawful assembly must do some overt act. When the accused persons assembled toghether, armed with lathis, and were parties to the

assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section

makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful

assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the

unlawful assembly may fasten vicariously criminal liability under section 149. It must be noted that the basis of the constructive guilt under section

149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.

Thus once the court hold that certain accused persons formed an unlawful assembly and an offence is committed by any member of that

assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in

prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of

that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to

prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.

The testimonies of witnesses Bhola, Guddi Bai, Ramkali and Sangeeta appears to be cogent reliable and trustworthy. The trial Court on proper

appreciation of evidence relied upon their version and held the appellants guilty for commission of offence punishable under Sections 148, 302/149

and 307/149 of IPC. We do not find any infirmity or perversity in the findings recorded by the trial Court.

Consequently, we do not find any merit in the present appeal and it is hereby dismissed. The appellants shall serve the sentence as awarded by

the trial Court. The bail-bonds of appellant Bhaiyadeen stands cancelled. He is directed to surrender before the trial court in order to undergo

remaining part of sentence awarded by trial Court.